Judicial Reports:
HASTY JUSTICE
By Mark Thompson
markthomp@yahoo.com
Posted 03-05-08
New York County Justice Richard B. Lowe III keeps getting reversed for too quickly jumping to conclusions about complicated disputes that, according to the Appellate Division, are not quite as easy to untangle as the judge would like to think.
In the most recent such case, Lowe, who sits on the Commercial Part, the court unit that handles complex commercial litigation, decided that since Con Edison had not removed wires from a construction site, the utility was liable to the contractor for breaching its common-law duty to relocate overhead wires that are interfering with a public works project. In fact, said the Appellate Division, Con Edison’s response to the suit demonstrated that the utility had a reasonable explanation for its conduct. Indeed, in numerous locations where wires were supposedly getting in the way, the work had already been completed before orders to relocate the wires were issued, the utility asserted. Yet without bothering to hear Con Edison out, Lowe “improperly inferred disinterested malevolence, as a matter of law,” said the appellate panel, reversing his grant of summary judgment to the contractor and sending the case back to court for further proceedings. DeMicco Brothers Inc. v. Consolidated Edison Company of New York, Inc. (February 28)
In nine other rulings over the past year, Lowe was reversed for prematurely dispensing with lawsuits or portions of lawsuit that, in the Appellate Division’s view, deserved a closer look. In two of the cases, Sung Hwan Co., Ltd. v Rite Aid Corp. (December 6) and Stavrou v. Contogouris (August 16), Lowe was reversed for dismissing actions in New York based on the erroneous conclusion that out-of-state judgments had put the matters to rest.
In two other cases, Primedia Inc. v. SBI USA LLC (September 13) and Chong Min Mun v. Soung Eun Hong (October 25), Lowe summarily disposed of disputes even though neither of the parties had filed a motion seeking a summary judgment.
In yet another case last year, Adelaide Productions Inc. v. BKN International AG (April 5), Lowe wanted to plow ahead with a hearing on what assets the defendant should turn over to the plaintiff to satisfy a money judgment. Not so fast, said the Appellate Division, reversing Lowe and sending the matter back to court for “a fact-finding hearing on the question of whether and to what extent respondent owed” any debt at all. The party that was prematurely ordered to pay up in that case sought to have Lowe booted off the case. But the Appellate Division concluded that, at least with respect to his denial of the recusal motion, Lowe got it right.
OTHER NOTABLE REVERSALS
KINGS COUNTY
The Appellate Division’s Second Department, as usual, found some tort suits from Brooklyn that, in the appellate judges’ view, should have been summarily tossed out of court.
TORT: Oft-reversed justice Martin Solomon gave a green light to one of the suits that was deemed unworthy by the appellate court. In the lawsuit, the survivors of a suicide victim who was killed by a train blamed the transit authority on grounds that, according to their expert’s calculation, the driver should have been able to bring the train to a stop with 11 feet to spare. As the Appellate Division saw it, that best case scenario painted by the plaintiff’s expert was based on “mere speculation” about such things as how fast the train was going and how quickly the driver should have been able to react. Since it would have been a very close call even under the best of circumstances, the appellate panel concluded that the plaintiff’s expert actually bolstered the transit authority’s argument that the victim had only himself to blame for his death. Mirjah v. New York City Transit Authority (February 26)
TORT: Justice Francois Rivera allowed Ronald Aberbach to proceed with a product liability suit that was based, according to the Appellate Division, on the plaintiff’s unfounded fear of exposure to infectious diseases. Aberbach filed a suit for battery, intentional infliction of emotional distress and other causes of action against the manufacturer of products used in orthopedic surgery that are made with bone, bone paste and other human tissue. The suit was based on the theory that the surgical materials are “potentially” contaminated with HIV or other diseases. However, as the appellate panel pointed out, Aberbach presented no evidence that he was actually infected with any disease, and on that basis, Rivera should have summarily dismissed his complaint. Aberbach v. Biomedical Tissue Services Ltd. (February 26)
CRIMINAL: Justice Deborah Dowling convicted Ronald Fredericks on multiple counts of robbery after a trial in which his attorney provided him with grossly ineffective assistance, the Appellate Division said. Fredericks committed the robbery spree armed with a BB gun, yet the attorney never moved for dismissal of first-degree robbery counts, even though conviction for that crime requires use of a loaded weapon capable of producing death or serious physical injury. Dowling compounded the defense attorney’s errors by improperly instructing the jury on the lesser included offenses on which, under the circumstances, they could have decided to convict Fredericks. The Appellate Division reversed the convictions on the most serious counts, but no new trial will be necessary because prosecutors agreed to drop those charges in the event of the loss on appeal, leaving the convictions on the second-degree counts in place. People v. Fredericks (February 26)
NEW YORK COUNTY
CIVIL PROCEDURE: Justice Sherry Klein Heitler gave James Couri his day in court, and then some, said an Appellate Division panel that characterized the pro se plaintiff as a vexatious pain in the neck. Couri offered no excuse for his failure to comply with a succession of four discovery orders issued by a referee. Yet Heitler was willing to send the matter to a second referee for a determination as to whether the first referee’s order should still stand. The appellate panel would have none of that. “Proceeding pro se is not a license to ignore court orders, engage in dilatory and obstructive conduct or malign officers of the court,” the appellate panel concluded, reversing Heitler and kicking Couri’s case out of court. Couri v. Siebert (February 28)
TORT: Justice Leland DeGrasse was reversed for holding Lillie Mosley to her word, even though the fateful remark she uttered in her deposition testimony was contradicted by other evidence. Mosley stated in the deposition that it was snowing when she slipped and fell, an admission seized on by DeGrasse to summarily dismiss her complaint on grounds that the defendant couldn’t be faulted for cleaning up after a storm that was still underway. As the Appellate Division noted, however, climatological records indicated that there was precipitation the day before but not on the day of the accident. That lent credence to Mosley’s claim that she slipped on ice that had been sitting for some time on a carelessly cleared sidewalk. The weather report also suggested that Mosley’s statement in her deposition testimony was simply a slip of the tongue, said the Appellate Division, reversing DeGrasse and reinstating the complaint. Reversed. Mosley v. General Chauncey M. Hooper Towers Housing Development Fund Co., Inc. (February 28)
DAMAGES: Justice Martin Shulman underestimated the suffering endured by Sergio Solana after he was struck in the head by the side mirror of a van, the Appellate Division said. Shulman called for stipulated verdict awarding $350,000 to the plaintiff. In the eyes of the appellate judges, however, the jury’s award of $750,000 for conscious pain and suffering did not deviate materially from what is reasonable compensation for the facial fractures and hemorrhaging that Solana suffered. Filipinas v. Action Auto Leasing (February 26)
BRONX COUNTY
REAL ESTATE: Justice Dianne T. Renwick returned a down payment to a buyer who, according to the Appellate Division, had no good excuse for failing to close on the transaction and therefore was not entitled to get her money back. The would-be buyer, Annette Rivera, couldn’t come up with the balance of the purchase price on the day when the sale was scheduled to close because she said her attorney had embezzled money from her. As it happened, she had also failed to fulfill her contractual obligation to apply for a mortgage loan. Neither explanation constituted a lawful excuse for her default, said the appellate panel, and therefore, under well-settled law in New York, the jilted seller can keep the down payment. Rivera v. Konkol (February 26)
TORT: Justice Mark Friedlander gave a procrastinating plaintiff’s attorney way too much slack, according to the Appellate Division. The attorney for Anthony Okoh offered his illness as an excuse for his failure to make service within 120-days of the filing of the summons and complaint. But he offered no explanation whatsoever for why he waited more than 14 months to ask for an extension of time to make service. That didn’t seem to trouble Friedlander, who allowed the plaintiff to proceed with the late claim. The appellate judges, however, weren’t so forgiving. The plaintiff not only offered no excuse for the missed deadlines, he also made no showing that there was any merit to his claim that he was injured in an automobile accident, so Freidlander should have dismiss the complaint. Okoh v. Bunis (February 28)
MIRANDA: Justice Seth L. Marvin was reversed for suppressing a written confession that he believed was obtained in violation of the Miranda rule. A police officer supposedly had orally delivered Miranda warnings to the defendant, Roy Gray, prompting him to indicate that he was prepared to take responsibility for the crime. Later, he provided a written confession after an officer used a form to fully advise Gray of his rights. Marvin suppressed the written confession on grounds that prosecutors failed to establish the content of the oral Miranda warnings that preceded defendant’s initial statement. The Appellate Division, however, concluded that since the written confession was obtained 45 minutes after the initial questioning, the statement was sufficiently attenuated from the initial encounter that it was free of any taint from the oral interrogation. That statement was also, in any event, ambiguous and not coerced, and was offered by a defendant who had been arrested often enough in the past that he cannot reasonably claim to have been confused about his right not to talk to the police. People v. Gray (February 26)
Posted by Ennis on March 5, 2008 01:16 AM to Judicial Reports